Can My Employer Force Me to Retire?achkarlaw-admin
Employees ages 55 and over comprise about a third of Ontario’s workforce. While many used to retire from their jobs at 65, the realities and costs of modern living force many people to continue working well into their golden years. Some employees over 65 refuse to retire because of how important their job is to their well-being, dignity, and self-worth.
Despite older employees’ ability and willingness to continue working in their advanced age, some employers pressure them to retire. In some cases, the employer will include a retirement age in an employee’s contract or a workplace policy. In other circumstances, employers may “recommend” that an employee retires when they hit a specific age or harass the employee until they feel they have no choice but to retire.
Is it legal for an employer to force you to retire? What legal remedies are available to you in this situation? What should you do if an employer is trying to force retirement on you? This article will answer these questions and explain how an employment and Human Rights lawyer can help you.
Forcing an Employee to Retire Is Discriminatory
Generally, there is no mandatory age for retirement in Ontario. Employees can usually work as long as they wish for their employer, with limited exceptions.
The Ontario Human Rights Code (the “Code”), among its other protections, states that every person has a right to equal treatment with respect to employment without discrimination based on age, and other protected grounds.
Workplace age discrimination can occur when an employer or workplace policy treats an employee differently to their disadvantage or systematically causes disadvantage to the employee based on their age. It can also occur if an employer or workplace policy denies prospective or current employees workplace opportunities based on their age.
Forcing an employee to retire for no reason except that they hit a certain age is a form of age discrimination in violation of the Code. A discriminatory contract term or policy that sets a mandatory retirement age in many cases is legally unenforceable.
The only exception to mandatory retirement amounting to discrimination on the basis of age is where the employee’s age is a bonafide occupational requirement for their job.
Determining whether a mandatory retirement age is a bonafide occupational requirement requires the employer to prove:
- The mandatory age for retirement is rationally connected to performing the job;
- The age requirement must have been adopted in good faith and to fulfill a legitimate work-related purpose; and
- The age requirement is reasonably necessary to accomplish the work-related purpose, such that it is impossible to provide accommodations to people impacted by the mandatory age retirement without imposing undue hardship upon the employer.
While these concepts may seem straightforward, it is always best to consult with an employment and Human Rights lawyer to determine your legal rights if you suspect you were subject to any form of discrimination.
What Remedies Are Available If You Are Forced to Retire
Depending on the circumstances, there could be both civil and Human Rights remedies available to you when an employer attempts to force your retirement.
You may be able to sue in civil court for your severance entitlements and other damages if your employer terminates your employment once you hit an unlawful mandatory retirement age or subjects you to a toxic work environment to force your retirement.
An employee also has access to Human Rights remedies, such as general damages for injury to your dignity, feelings, and self-respect, and lost wages from the date of the employer’s discriminatory act up to the date hearing before the Human Rights Tribunal of Ontario. You can also ask the Tribunal for non-monetary remedies to address the discrimination you face.
What legal process you should use and what remedies you should pursue will depend on the facts of your case. It is always best to consult with an employment dispute lawyer to determine how you should pursue your legal entitlements.
What To Do If You Are Forced to Retire
If you suspect your employer is discriminating against you, it is essential to gather and maintain copies of all documents that could help prove your case. Examples of important documents include but are not limited to your employment contract, workplace policies, written communications like emails and texts, notes, and any complaints you already submitted to your employer.
Making an informal and written complaint to your employer about a workplace dispute is usually a good first step to resolving it. Whether your employer addresses your concerns or not, they should be provided the reasonable opportunity to do so. Failure to make such informal complaints before seeking legal remedies could hurt your case.
If the employer does not provide you with a satisfying resolution to your complaint, your next step is to decide which legal process to pursue your entitlements. In many cases of age discrimination, an Application to the Human Rights Tribunal of Ontario is the appropriate forum to sue your employer. However, in some cases, it is better to seek your legal entitlements through Ontario’s courts with a statement of claim.
Only an employment and Human Rights lawyer can legally advise you about whether a civil lawsuit or Human Rights claim is more appropriate for your case. Consulting with an employment and Human Rights lawyer early in your workplace and Human Rights dispute can also help you take proactive steps to maximize your chances of getting the results you want.
There is no mandatory retirement age in Ontario. An employer forcing you to retire based on your age is a form of age discrimination, subject to limited exceptions. An employer may be able to avoid liability for violating the Code if they can show the age requirement for retirement is a bonafide occupational requirement.
You can potentially seek both monetary and non-monetary legal remedies if you are forced out of your workplace based on your age. If your employer discriminated against you, it makes sense to gather and maintain documents relevant to proving your case, possibly file an informal complaint with your employer, and potentially commence a legal proceeding to seek your entitlements.
There is no substitute for hiring an employment and Human Rights lawyer to determine and pursue your legal entitlements. They can provide legal advice to help strengthen your case, advocate on your behalf throughout complicated legal proceedings, and possibly negotiate a settlement with your employer to help achieve your desired result.
If you are an employer facing a Human Rights claim, or an employee who was discriminated against in the workplace, our team of experienced workplace lawyers at Achkar Law can help. Contact us today at +1 (800) 771-7882 or email [email protected] , and let us help you find the solutions you need to move forward.